STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS ) AND PROFESSIONAL REGULATION, ) DIVISION OF ALCOHOLIC BEVERAGES ) AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3241

) WALTER FALCON, d/b/a FALCONS JVJ ) GENERAL STORE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 27, 1994 in Gainesville, Florida.

APPEARANCES

For Petitioner: Miguel Oxamendi

Senior Attorney

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Walter Falcon, pro se

Falcons JVJ General Store Post Office Box 2075

1088 Highway 20

Interlachen, Florida 32148 STATEMENT OF THE ISSUE

Whether Respondent's alcoholic beverage license issued by Petitioner should be disciplined for violations of Florida law alleged in an Administrative Action entered December 17, 1993.

PRELIMINARY STATEMENT

On or about December 17, 1993 Petitioner entered an Administrative Action charging that Respondent had violated Florida law by selling, giving or serving alcoholic beverages to, or allowing the consumption of alcoholic beverages by, underage persons. Respondent filed a Request for Hearing dated January 10, 1994, with Petitioner contesting the charges.

On June 9, 1994 Petitioner filed the Request for Hearing with the Division of Administrative Hearings requesting the assignment of a Hearing Officer to conduct a formal administrative hearing. The matter was designated case number 94-3241 and was assigned to the undersigned.

A final hearing was scheduled for September 27, 1994 by Amended Notice of Hearing entered September 12, 1994.

At the final hearing Petitioner presented the testimony of Earnest Wilson, Roger Sassaman, Curtis Jernigan, Pollyanna Alessi and Chris LaBelle. Petitioner also offered 9 exhibits which were accepted into evidence. Respondent presented no evidence.

Official recognition of Rule 61A-2.022, Florida Administrative Code, was taken.

No transcript of the final hearing was filed.

The parties agreed to file proposed recommended orders on or before October 17, 1994. Petitioner filed a proposed recommended order on October 4, 1994. A ruling on each proposed finding of fact contained in the proposed order filed by Petitioner has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, the Department of Business Regulation and Professional Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter referred to as the "Division"), is an agency of the State of Florida charged with responsibility for enforcing Chapter 561, Florida Statutes.

      
      

   2. The Respondent is Walter Falcon, d/b/a Falcons JVJ General Store (hereinafter referred to as "Falcons").

      
      

   3. At all times relevant to this proceeding Mr. Falcon held Florida alcoholic beverage license number 64-00453, series 2-COP (hereinafter referred to as the "License"). The License authorized Mr. Falcon to sell and possess alcoholic beverages on premises of Falcon's located at 1088 Highway 20, Interlachen, Putnam County, Florida.

      
      

2. The Putnam County Sheriffs Office Investigation of Falcon's.

   
   

   1. In October of 1993, the Putnam County Sheriffs Office initiated an investigation of alleged sales of alcoholic beverages to persons under the age of 21 years at Falcons.

      
      

   2. On October 14, 19, 20 and 28, 1993 Pollyanna Alessi entered Falcons in furtherance of the Putnam County Sheriffs Office investigation.

      
      

   3. Ms. Alessi's date of birth is March 13, 1973. At all times relevant to this proceeding, Ms. Alessi was 20 years old. Ms. Alessi's appearance in October of 1993 was not such that an ordinary prudent person would believe her to be of legal age.

   4. On October 14, 1993:

      
      

      1. Ms. Alessi entered Falcon's and purchased a six-pack of Miller Genuine Draft beer. Petitioner's exhibit 2.

      2. Mr. Falcon sold the beer to Ms. Alessi.

      3. Mr. Falcon did not ask Ms. Alessi for any identification or other proof of age. Mr. Falcon also did not ask Ms. Alessi her age.

         
         

   5. On October 19, 1993:

      
      

      1. Ms. Alessi entered Falcon's and purchased a six-pack of Miller Genuine Draft beer. Petitioner's exhibit 3.

      2. Mr. Falcon sold the beer to Ms. Alessi.

      3. Mr. Falcon did not ask Ms. Alessi for any identification or other proof of age. Mr. Falcon also did not ask Ms. Alessi her age.

         
         

   6. On October 20, 1993:

      
      

      1. Ms. Alessi entered Falcon's and purchased one bottle of Miller Genuine Draft beer. Petitioner's exhibit 4.

      2. Mr. Falcon sold the beer to Ms. Alessi.

      3. Mr. Falcon did not ask Ms. Alessi for any identification or other proof of age. Mr. Falcon also did not ask Ms. Alessi her age.

         
         

   7. On October 28, 1993:

      
      

      1. Ms. Alessi entered Falcon's and purchased

         a six-pack of Coors beer. Petitioner's exhibit 5.

      2. Mr. Falcon sold the beer to Ms. Alessi.

      3. Mr. Falcon did not ask Ms. Alessi for any identification or other proof of age. Mr. Falcon also did not ask Ms. Alessi her age.

         
         

   8. The products purchased by Ms. Alessi were clearly labelled as beer, an alcoholic beverage, and were identified as alcoholic beverages.

      
      

3. The Division's Investigation of Falcon's.

1. On October 29, 1993, Chris LaBelle, while in the employ of the Division, participated in the investigation of alleged sales of alcoholic beverages to persons under the age of 21 years at Falcons.

   
   

2. Ms. LaBelle's date of birth is April 29, 1974. At all times relevant to this proceeding, Ms. LaBelle was 19 years old. Ms. LaBelle's appearance on October 29, 1993 was not such that an ordinary prudent person would believe her to be of legal age.

3. On October 29, 1993:

   
   

   1. Ms. LaBelle entered Falcon's and purchased a six-pack of Michelob Light beer. Petitioner's exhibit 7.

   2. Mr. Falcon sold the beer to Ms. LaBelle.

   3. Mr. Falcon did not ask Ms. LaBelle for any identification or other proof of age. Mr. Falcon also did not ask Ms. LaBelle her age.

      
      

4. The products purchased by Ms. LaBelle were clearly labelled as beer, an alcoholic beverage, and were identified as alcoholic beverages.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

5. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).

   
   

   1. Burden of Proof.

      
      

6. The burden of proof absent a statutory directive to the contrary is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co. Inc., 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

   249 (Fla. 1st DCA 1977).

   
   

7. In this proceeding it is Division that is asserting the affirmative. The Division therefore had the burden of proving by clear and convincing proof that Mr. Falcon committed the offenses he has been charged with in this proceeding.

   
   

   1. The Charges Against Mr. Falcon.

      
      

8. The Division has charged Mr. Falcon with violating Section 562.11(1)(a), Florida Statutes.

   
   

9. Section 561.29(1)(a), Florida Statutes authorizes the Division to revoke or suspend a beverage license if a licensee or his or her agents, officers, servants or employees violate any laws of Florida or the United States on the licensed premises.

10. Section 562.11(1)(a), Florida Statutes, provides the following: (1)(a) It is unlawful for any person to sell,

    give, serve, or permit to be served alcoholic

    beverages to a person under 21 years of age or to permit a person under 21 years of age to consume such beverages on the licensed premises. Anyone convicted of violation of the provisions hereof is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

11. A complete defense to a violation of Section 562.11(1)(a), Florida Statutes, is provided in Section 562.11(1)(b), Florida Statutes, if a person to whom alcohol is sold is of legal age or, if not, " . . . the appearance of the person was such that an ordinary prudent person would believe him to be of legal age to purchase or consume the alcoholic beverage and if the licensee carefully checked . . . " one of several forms of identification listed.

    
    

12. At all times relevant to this proceeding, Ms. Alessi's appearance and Ms. LaBelle's appearance was not such that an ordinary prudent person would believe them to be of legal age. Nor did Mr. Falcon make any effort to check any form of identification before selling the alcoholic beverages at issue in this proceeding.

    
    

    1. Penalty.

    
    

13. Rule 61A-2.022, Florida Administrative Code, contains the Division's penalty guidelines.

    
    

14. The penalty guideline for violations of Section 562.11, Florida Statutes is revocation for a third occurrence. The Division has argued that Mr. Falcon committed five violations within a two week period and, therefore, he has more than "three occurrences."

    
    

15. What constitutes an "occurrence" is not defined by the Division's penalty guideline rule. Treating a "violation" as an "occurrence" is, however, consistent with the penalty guideline rule.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation,

Division of Alcoholic Beverages and Tobacco, enter a Final Order finding that Walter Falcon, d/b/a Falcon's JVJ General Store, is guilty of the violations of Section 562.11(1)(a), Florida Statutes, alleged in the Administrative Action of December 17, 1993. It is further

RECOMMENDED that Walter Falcon, d/b/a Falcon's JVJ General Store, alcoholic beverage license number 64-0453, series 2-COP be revoked.

DONE AND ENTERED this 9th day of November, 1994, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1994.

APPENDIX

The Division has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Falcon did not file a proposed recommended order.

The Division's Proposed Findings of Fact

10 Accepted in 11 and 15.

COPIES FURNISHED:

Miguel Oxamendi

Assistant General Counsel Department of Business and

Professional Regulation 725 South Bronough Street

Tallahassee, Florida 32399-1007

Jack McRay

DBPR Acting General Counsel Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

John J. Harris Acting Director Division of Alcoholic Beverages

and Tobacco Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-003241

Orders for Case No: 94-003241